Judgement

Appeal from a judgment and decree of the High Court (March 11, 1908) reversing a judgment and decree of the Subordinate Judge of Faridpur (June 80, 1905).

The suit out of which the appeal arose was instituted by the appellants in 1903 for possession of a jalkar or fishery in certain tidal navigable waters, being part of the Ganges or Padma river in the district of Faridpur, for an injunction and mesne profits.

The appellants were the proprietors of a zamindari known as pargana Char Makundia and they claimed that a jalkar mahal described as in the river Balabanta was settled in their prede cessor in title as a distinct mahal forming part of Char Makundia at the time of the permanent settlement, and had been enjoyed since. They alleged that the river Balabanta was at the date of the settlement a local name for the Ganges or Padma river. The channel in which they now claimed the right of fishing was navigable and had been formed in 1897 by a change in the course of the river, but they claimed that it was within the upstream and downstream limits of the jalkar granted to their predecessor and that their right of fishing extended to it, although (as was admitted in the appeal) that part of the channel which was in dispute flowed over the land of the first respondent.

The first respondent by his written statement of defence traversed generally the allegations in the plaint and denied that the appellants were entitled to any rights of fishery in the waters in suit, or in any waters outside the limits of their own zamindari. The nature of the evidence adduced by the appellants at the trial appears from their Lordships judgment.

The Subordinate Judge delivered judgment on June 30, 1905. He held that the appellants had proved possession, since 1860 at least, of a jalkar within the limits claimed in their plaint, the river Balabanta being the same as the Ganges or Padma, and that a Government grant of the jalkar might be presumed ; that the disputed jalkar was partly within and partly outside the limits of the land of the appellants zamindari, but that their jalkar rights constituted a separate mahal; that the disputed stream was within the upstream and downstream limits of the appellants jalkar and formed a part of it, although it flowed partly over the land of the first respondent. He accordingly made a decree in the appellants favour.

The High Court (Harington and Holmwood JJ.), by its judgment delivered on March 11, 1908, allowed the appeal. The effect of the judgment was that the appellants had not proved their case. The learned judges held that although the appellants might have acquired prescriptive rights against other landowners they had not done so against the respondents, since the channel in dispute had only come into existence in 1897 and the appellants had been dispossessed by the respondents within four years of that date. They also held that it was not proved by the appellants that the Government had granted to their predecessors in title a right of fishery outside the limits of the zamindari settled in them. It was therefore not necessary to decide whether a grant by the Government of a jalkar extended, upon a change in the course of the river, to channels flowing over land settled in persons other than the owner of the jalkar.

De Gruyther, K.C., and Dunne, for the appellants. The evidence adduced by the appellants at the trial establishes the facts found in their favour by the Subordinate Judge. A right of jalkar can exist as an incorporeal hereditament Forbes v. Meer Mahomed Hossein (( 1873) 12 Beng.

L. R. 210, at p. 216.); and it can be so settled by the Government. There was evidence of the exercise of the appellants right and of its recognition by the Government which justified the Subordinate Judge in presuming a settlement of the jalkar, as a separate mahal, upon the appellants predecessors in title. The Indian authorities clearly establish that in Bengal a right of jalkar in a navigable river extends, u